England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		CO/7544/2007 Royal Courts of Justice Strand London WC2A 2LL
		31st January 2008

1. MR JUSTICE WALKER: Mr Longstaff appeals against the decision of the Durham Justices, sitting at Bishop Auckland Magistrates' Court on 21 May 2007. The Justices convicted him of failing to provide a specimen of breath for analysis contrary to section 7(6) of the Road Traffic Act 1988.
2. Section 7(6) is in these terms:

"(6) A person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section is guilty of an offence."

The subsection must be read in conjunction with section 11(3):

"(3) A person does not co-operate with a preliminary test or provide a specimen of breath for analysis unless his co-operation or the specimen -

(a) is sufficient to enable the test or the analysis to be carried out, and

(b) is provided in such a way as to enable the objective of the test or analysis to be satisfactorily achieved."

3. As a result of a road traffic accident on 25 February 2006 the appellant was arrested on suspicion of drink driving and taken to Bishop Auckland Police Station. On arrival, a custody record was opened and it was noted that the appellant complained of back pain. Police Constable Hughes commenced a procedure on a machine known as a Camic datamaster to ascertain an alcohol reading level from the appellant's breath. The appropriate form to use was form MGDD/A, which I shall call "Form A". PC Hughes filled in the form as he went along. The appellant attempted to provide a sample on three occasions but did not provide a satisfactory sample. When asked if there was any medical reason why he could not provide a breath specimen, the appellant stated that he was unable to breathe properly because of back pain. The form directs a constable to the next step of the procedure in this way:

"if NO or no reasonable cause to believe there are medical reasons CHARGE FAILURE TO PROVIDE, if Yes (or NO but there is reasonable cause to believe there are medical reasons) ... go to MG DD/B"

The reference to "MGDD/B" is a reference to a second form which I shall call "Form B". PC Hughes completed section B3 of Form B. This recorded that the appellant was informed that he was required to provide a specimen of blood, was asked if there were any medical reasons as to why such a specimen could not be taken and that the appellant's reply was no.

4. A police surgeon arrived to take a blood sample. Following a discussion between the surgeon and PC Hughes it was decided that there would be an examination by the police surgeon of the appellant to ascertain if there was a medical reason for his failure to provide a breath specimen. Having taken a history and examined the appellant, the doctor advised that there was no medical reason for the appellant not to provide a specimen of breath. In those circumstances, PC Hughes did not require the doctor to take a sample of blood. Instead, the appellant was returned to his cell and was advised that he would be charged with failing to provide a specimen of breath.
5. On 4 April 2006 the appellant was so charged. He was also charged with a number of other offences which are not relevant for the purposes of this appeal. At trial, the appellant advanced two principal contentions. The first was that the court should exercise its inherent jurisdiction to stay the proceedings as an abuse of process. It was said that he was unable to have a fair trial as the mouthpiece of the device had not been retained. The second was that the police officer, having completed section B3 of Form B, was duty bound to allow the appellant to provide a sample of blood or urine for analysis. It was contended that it was unlawful for the police to take a step back in the process and to charge him with failing to provide a specimen of breath, having called a doctor out to obtain a blood sample.
6. The Justices found that the appellant had failed to provide a specimen of breath without reasonable excuse and that there was no medical explanation or reason why he was unable to provide a specimen of breath. They added that the officer conducting the test was entitled to charge the appellant with failing to provide a breath specimen without proceeding to a blood or urine sample given that he was satisfied, on the basis of a medical opinion from a doctor, that there was no medical excuse for the appellant's failure. The Justices declined to stay the proceedings as an abuse of process, being of the opinion that the failure to retain the mouthpiece did not prevent the appellant from receiving a fair trial. Thus the appellant was convicted.
7. This appeal comes by way of case stated. The questions identified for the opinion of the High Court are as follows:

"1. The MG DD/B form is partially completed and indicates that the procedure for a liquid sample had been instigated and that the defendant had been asked whether there were any medical or other reasons why he could not provide such a specimen

• Is it wrong in law not to complete that procedure?

• Did the fact that PC Hughes did not take a liquid sample cause prejudice to the Appellant and deprive him of a right to a fair trial?

2. Was the Appellant deprived of a fair trial because the mouthpiece was not retained by the police. Should the defence have had the opportunity to have the mouthpiece forensically examined in light of the fact that the prosecution contention was that the Appellant [was] not breathing properly into the mouthpiece?

3. Should the case have been stayed on the grounds that it was an abuse of the courts process?"

Question 1: the partial completion of Form B

8. Ms Joan Smith appears for the appellant today. She notes that the court is a concerned with the procedure conducted in respect of the specimen. In her skeleton argument, she drew attention to section 7(3) and 7(4A) of the Act:

"(3) A requirement under this section to provide a specimen of blood or urine can only be made at a police station or at a hospital; and it cannot be made at a police station unless—

(a) the constable making the requirement has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required, or

(b) at the time the requirement is made a device or a reliable device of the type mentioned in subsection (1)(a) above is not available at the police station or it is then for any other reason not practicable to use such a device there, or

(bb) a device of the type mentioned in subsection (1)(a) above has been used at the police station but the constable who required the specimens of breath has reasonable cause to believe that the device has not produced a reliable indication of the proportion of alcohol in the breath of the person concerned, or

(bc) as a result of the administration of a preliminary drug test, the constable making the requirement has reasonable cause to believe that the person required to provide a specimen of blood or urine has a drug in his body, or

(c) the suspected offence is one under section 3A, 4 of this Act and the constable making the requirement has been advised by a medical practitioner that the condition of the person required to provide the specimen might be due to some drug;

but may then be made notwithstanding that the person required to provide the specimen has already provided or been required to provide two specimens of breath.

...

(4A) Where a constable decides for the purposes of subsection (4) to require the provision of a specimen of blood, there shall be no requirement to provide such a specimen if -

(a) the medical practitioner who is asked to take the specimen is of the opinion that, for medical reasons, it cannot or should not be taken; or

(b) the registered health care professional who is asked to take it is of that opinion and there is no contrary opinion from a medical practitioner;

and, where by virtue of this subsection there can be no requirement to provide a specimen of blood, the constable may require a specimen of urine instead."

9. The skeleton argument for the appellant on this aspect then proceeded to set out extensive submissions. The substance of the argument, including refinements made orally by Ms Smith today, can be reduced to a series of propositions. I shall take each proposition in turn. They are not in the precise format advanced by Ms Smith but I believe that they adequately summarise her points.
10. The first proposition is that the officer, in accordance with the Act, considered there to be a reason why a specimen of breath could not or should not be taken and therefore commenced the Form B procedure. It is then said that, once the Form B procedure commenced, the sample of blood should have been obtained. In support of this conclusion it is said that the Act provides that either a specimen of breath be taken or that a specimen of blood be taken, not that both ought or can be taken.
11. I agree with the premise. The officer undoubtedly commenced the Form B procedure and must therefore have considered there to be a reason why a specimen or breath could not or should not be taken. I disagree, however, with the conclusion. Nothing in the Act states that this conclusion follows from the premise. Ms Smith's contentions to the contrary all rely upon her subsequent propositions to which I now turn.
12. The second proposition is that a constable can exercise discretion and does not need a medical opinion before accepting a person's statement that there was a reasonable excuse for not providing a specimen of breath. I can accept this proposition in a general sense for the purposes of today. It is enough for the purposes of section 7(3)(a) that the constable merely has reasonable cause to believe that for medical reasons a specimen of breath cannot be provided or should not be required. That does not appear to me to advance matters for present purposes. The question for the Magistrate arose under a different subsection: section 7(6). It was whether, in fact, the appellant had a reasonable excuse for failing to provide a specimen of breath. No doubt, the appellant could rely on the initial view taken by the constable as supporting his contention that he had a reasonable excuse but the question remained one for the Justices to decide on all the evidence.
13. The third proposition is that the only reason not to take blood once the process is begun is because there is a medical problem. Reliance is placed on section 7(4A). This proposition appears to me to misconceive the purpose of that subsection. What that subsection does is to remove in certain circumstances the requirement to provide a specimen of blood. It says nothing about whether an officer may change his mind about whether to maintain that requirement.
14. The fourth proposition is that the officer was not entitled to retreat to the original form and specimens or lack thereof once the procedure for taking blood was engaged "and therefore the sample of breath should have been considered void for the purposes of prosecution". In support of this proposition, it was said that the constable was entitled to request only a specimen of breath or a specimen of blood and, accordingly, there could be no reliance on the failure to provide breath when the provision for taking blood was engaged. As a consequence, it was said that any request for breath is rendered unlawful and what happened after such a request is inadmissible. Here I think it important again to stress that we are concerned with whether there was a failure to provide a specimen of breath without reasonable excuse. I do not see anything in the statute to suggest that the mere fact that the officer later sought a blood test debars the prosecution from asserting that there was a failure to provide a specimen of breath without reasonable excuse.
15. The fifth proposition was that, if required, the opinion of the doctor should have been obtained before the procedure commenced. Ms Smith acknowledged that the statute did not expressly provide that this was the case. I can see nothing in the statute to that effect. Any implication to that effect cannot in my view be made out. Even if there were an implication to the effect suggested by Ms Smith, I cannot see how that would be relevant to the question whether an offence under section 7(6) had been made out. The two provisions are to my mind entirely separate. It is in any event absurd to suggest that a failure to call for the doctor's help initially is a bar to relying on what the doctor says later. As was pointed out by Mr Moran for the respondent, a confession to the doctor might be made by a defendant that the suggested medical reason had been invented simply for the purposes of the gaining of time. Parliament cannot have intended to stop the police from relying on the confession to prove that the defendant failed to provide a specimen of breath without reasonable excuse.
16. The sixth proposition was that there is no power within the Act for a doctor to refuse to take a sample of blood on the basis that the accused is thought to be fit to provide a specimen of breath. This proposition is fundamentally misconceived. Section 7 does not seek to compel doctors to take blood samples. There was nothing improper in the doctor stating his view that the appellant was fit to provide a specimen of breath. Thereafter, the officer deliberately chose to countermand his request that the doctor take a blood sample. The doctor can hardly be criticised for acting accordingly. Even if he could be criticised, I cannot see how that would offer any defence to a charge under section 7(6).
17. The seventh proposition was that the failure to follow guidelines in this case removed the ability to comply with the requirements of providing a sample of blood. I accept that the appellant was not permitted to supply a sample of blood. I do not accept that this contravened any guideline. Once the constable changed his mind he was perfectly entitled to cease carrying out the procedure under Form B.
18. The eighth proposition was that the appellant did not wilfully refuse to provide a sample of "breath or blood". The thinking here seems to be that a defendant charged with failure to provide a sample of breath has a complete defence that an offer was made to supply a sample of blood. The short answer is that under section 7(6) it is for the Justices to decide whether there is reasonable excuse.
19. The ninth proposition was that the admission of evidence about what happened when a sample of breath was required rendered the proceedings unfair. The unfairness was said to arise because the procedure for obtaining a blood sample had been put in motion. I am not persuaded that there was any unfairness in this regard. The mere fact that at a time after the failure to provide a specimen of breath the procedure for obtaining a blood sample had been put in motion does not give rise to a legitimate expectation that no complaint would be made about the failure to supply a specimen of breath. Even if it had done so, in the light of the doctor's opinion provided after that time, I would have concluded that the interests of justice required that the prosecution be permitted to proceed.
20. The foregoing analysis has not involved an investigation of the numerous authorities cited by Ms Smith. It suffices to say that nothing in these authorities is inconsistent with the reasons I have identified for rejecting Ms Smith's propositions. It follows from this analysis that on this aspect of the appeal the appellant has not demonstrated any error of law on the part of the Magistrates. I would answer question 1: "The failure to complete the procedure for taking a specimen of blood was not wrong in law, did not cause prejudice to the appellant and did not deprive him of a fair trial. Even if it had been wrong in law, that would have had no bearing on the question whether the appellant was guilty of an offence under section 7(6)."

Questions 2 and 3: the mouthpiece and abuse of process

21. The starting point for this submission is that Form A states that the mouthpiece should be retained in any case where there is to be a charge of failing to provide a specimen where an attempt to use the device was made in case there is a need for forensic examination. In the present case, at some time between the conducting of the procedure and the commencement of the trial, the mouthpiece appears to have been lost. That gave rise to a submission, which as I understand it was made at the close of the evidence, that the case against the appellant should be dismissed for abuse of process. The skeleton argument from Ms Smith submits that it was neither asserted nor implied by what happened at the time that the police contended that the appellant deliberately frustrated the procedure for the taking of a specimen of breath. In a statement provided by PC Hughes some time later, that officer said, however, that the appellant "did not form a proper seal". In those circumstances, her contention was that the appellant was prejudiced in such a manner as to call for action by the court dismissing the proceedings as an abuse of process.
22. There may well be cases where it is important to have the mouthpiece available for forensic examination. In my view this case is not one of them. The Magistrates accepted the custody officer's evidence that the appellant was deliberately failing the breath test. There had been no suggestion by the appellant that there was anything wrong with the mouthpiece. In assessing whether or not to accept the officer's evidence, examination of the mouthpiece was not going to assist one way or the other. Moreover, the appellant gave his reason at the time for failing to provide a satisfactory specimen, namely that he suffered from back pain. I am not persuaded that there is any ground for criticising the Justices' decision that there was no unfairness to the appellant.
23. Accordingly, I would answer question 2: "The appellant was not deprived of a fair trial; in the particular circumstances of this case, there was no need to have the mouthpiece available for inspection by the defence". My answer to question 3 would be: "No".

Conclusion

24. For the reasons identified earlier, I would dismiss this appeal.
25. LORD JUSTICE MAURICE KAY: This is one of a sizeable number of cases in which appellants seek, through the case stated procedure, to rid themselves of convictions for offences of excess alcohol or failure to provide a specimen. My Lord has explained why the points sought to be taken by the appellant in this case are utterly without merit and are unsustainable. What the appellant has attempted to do, in common with appellants in numerous other cases, is to force the decision making powers of police officers into a straight jacket which has no basis in the provisions of the statute or established authority. The forensic technique is to seek to refashion the law by reference to the contents of standard forms used by the police. It is a most unattractive development. It highlights the importance of the consideration being given by the Law Commission and others to the introduction of a permission requirement as a pre-requisite to a case stated appeal.
26. I entirely agree with my Lord's judgment and I would answer the questions as he has suggested. This appeal is therefore dismissed.
27. LORD JUSTICE MAURICE KAY: Anything else?
28. MR MORAN: No, thank you my Lord.
29. LORD JUSTICE MAURICE KAY: Thank you very much.
30. MS SMITH: The appellant was legally aided. Perhaps legal aid assessment in the circumstances.
31. LORD JUSTICE MAURICE KAY: If he has legal aid you are entitled to a assessment, but in this, as in many other cases, one wonders why.